Richard W. Rich, Jr., Public Defender of Chemung County, for defendant.
John R. Trice, District Attorney of Chemung County, for plaintiff.
Peter C. Buckley, J.
The defendant is charged with 56 criminal counts in connection
with an incident alleged to have occurred on Valentine's Day at the Southside High School as follows:
SS Seventeen counts of criminal possession of a dangerous weapon in the first degree (Penal Law § 265.04), alleging that the defendant possessed 17 different devices containing an explosive substance, with the intent to use the same unlawfully against the person or property of another.
SS Thirty-four counts of criminal use of a firearm in the first degree (Penal Law § 265.09  [a]), alleging possession of the 17 bombs with a loaded Ruger .22 caliber pistol (one count for each device with the Ruger) and also one count for each explosive substance possessed with a loaded Remington 12 gauge shotgun.
SS Three counts of criminal possession of a weapon in the third degree (Penal Law § 265.02 ), alleging possession of an incendiary (propane bottle) bomb (located at the school) and two explosive bombs (located at his residence).
SS One count of criminal possession of a weapon in the second degree (Penal Law § 265.03 ), alleging possession of the Ruger pistol with intent to use the same unlawfully against the person or property of another.
SS One count of criminal possession of a weapon in the fourth degree (Penal Law § 265.01 ), alleging possession without permission of the loaded shotgun in a building used for educational purposes.
Mr. Getman is alleged to have possessed the Ruger pistol and three of the explosive devices on his person and 14 additional explosive devices in a duffel bag, which he carried to school.
The defendant has filed a motion arguing that many of the counts of the indictment are defective because they are multiplicitous, and that they should thus be dismissed.
Briefly, the defendant argues that he possessed only one explosive substance and may be charged with only one count under Penal Law § 265.04. Further, the defendant argues that since there is only one legitimate charge of criminal possession of a dangerous weapon in the first degree, only two charges of
criminal use of a firearm in the first degree may be supported. The People argue that each of the devices had a separate identity, that each was individually capable of exploding and that each properly supported separate counts of the (Penal Law § 265.04) crime.
Since the defendant has challenged the indictment and the indictment is based upon the evidence before the Grand Jury, a review of and reference to that evidence is necessary to deciding this motion. (See, People v Vogt, 172 A.D.2d 864 [2d Dept. 1991]; People v Sulkey, 195 A.D.2d 1026 [4th Dept. 1993], lv denied 82 N.Y.2d 759 ; People v Corrado, 161 A.D.2d 658 [2d Dept. 1990]; People v Gellineau, 178 Misc.2d 790 [Sup Ct, Kings County 1998].)
What is Multiplicity/Duplicity?
Section 200.20 (1) of the CPL states, " [a]n indictment must charge at least one crime and may, in addition, charge in separate counts one or more other offenses" (emphasis added).
An indictment is multiplicitous if two separate counts charge what amounts to one single crime. (People v Senisi, 196 A.D.2d 376, 382 [2d Dept. 1994], lv denied sub nom. People v Killane, 84 N.Y.2d 828 .) An indictment is not multiplicitous if each count requires proof of an additional fact that the other does not require. (People v Kindlon, 217 A.D.2d 793, 795 [3d Dept. 1995],lv denied 86 N.Y.2d 844 ; see, Blockburger v United States, 284 U.S. 299, 304.)
" The vice of multiplicity is that it may lead to multiple sentences for the same offense (United States v Reed, 639 F.2d 896, 904). In addition 'the prolix pleading may have some psychological effect upon a jury by suggesting to it that defendant has committed not one but several crimes' (United States v Mamber, 127 F.Supp. 925, 927)." (People v Horne, 121 Misc.2d 389, 393 [Sup Ct, Kings County 1983].) The Horne court noted that in New York there was not an actual danger of multiple sentences for the same offense since Penal Law § 70.25 requires the imposition of concurrent time for convictions arising out of the same transaction.
In order to fully appreciate the issue of multiplicity, one must also consider the opposing error of duplicity.
" Pursuant to CPL 200.30, an indictment is duplicitous when one count of the indictment charges more than one offense." (People v Kindlon, supra at 795.)
" Duplicitous counts are prohibited to prevent double jeopardy, to ensure a defendant's due process right to notice, and
to ensure the unanimity of a jury's verdict." (People v Fernandez, 173 Misc.2d 938, 944 [Sup Ct, Kings County 1997].)
" The prohibition against duplicity in an indictment insures the reliability of the unanimous verdict, in that if two or more offenses are alleged in one count, individual jurors might vote to convict a defendant of that count on the basis of different offenses, and the defendant would thus stand convicted under the count even though the jury may never have reached ...